On October 28, 2005, the plaintiff was involved in a rear-end motor vehicle accident. The defendant Zimmer was stopped behind the plaintiff. The defendant DeRosa, driving a van, struck the rear of the Zimmer, pushing Zimmer’s vehicle into the rear of the plaintiff’s vehicle. The police responded and the plaintiff advised that she was OK and drove away from the scene. Later, the plaintiff felt sore and went to the emergency room.

About four months after the accident, the plaintiff began treatment with a chiropractor for back and neck pain. The plaintiff was referred to Dr. Kaul, a specialist in interventional pain and minimally invasive spine surgery. Dr. Kaul found the plaintiff had bilateral L5-S1 radiculopathy and tears in discs at L4-5 and L5-S1. The plaintiff underwent lumbar steroid injections. Eventually, Dr. Kaul recommended spinal fusion therapy; however, the plaintiff declined.

At trial, the plaintiff testified that she did not return to work as a seamstress because of pain and inability to perform her job functions.

The defense produced an orthopedic surgeon who testified that the plaintiff was 5’5” and weighed over 300 lbs. He found no objective evidence of injuries from the accident and that the plaintiff’s back problems were common in overweight individuals. A radiologist testified that he had reviewed the MRI films and found they showed no evidence of herniated discs or annular tears, but did show age related disc degeneration.

On June 24, 2007, the Social Security Administration (SSA) issued a four-page Notice of Award finding that the plaintiff became disabled on October 28, 2005. Prior to trial, defense counsel filed an in limine motion seeking to preclude the plaintiff from introducing any evidence or testimony pertaining to the SSA disability determination. The plaintiff argued that the determination creates a rebuttable presumption that the plaintiff was disabled and unable to work as a consequence of the accident. The plaintiff also argued they should be able to cross-examine the defendant’s orthopedic expert with the SSA findings. The trial court precluded the use of the SSA determination.

It should be noted that during closing arguments, defense counsel stressed that there was no medical testimony that the plaintiff was unable to work. Plaintiff’s counsel objected and the court found the defense counsel had “opened the door.” The jury was then advised that the plaintiff was determined to be disabled by SSA. The jury returned a unanimous verdict finding the plaintiff did not sustain an injury as a proximate result of the accident of October 28, 2005.

On appeal, the court first observed that they were not faced with the concepts of res judicata or collateral estoppel since the defendant was neither a party nor in privity with a party to the proceedings before the SSA.

The Appellate Court also noted that the SSA determination was hearsay. The court found that the only hearsay exception that may apply to the case was the public records exception under NJRE 803(c)(8). This evidentiary rule notes, “ (A) that a statement contained in a writing made by a public official of an act done by the official or an act, condition or event observed by the official if it was within the scope of the official’s duty either to perform the act reported or to observe the act, condition or event reported and to make the written statement.”

In rendering its decision, the court looked to Phillips v. Erie Lackawanna RR Co., 107 N.J. Super. 590 (App. Div. 1969), wherein the Appellate Division held the factual conclusions of the hearing examiner of the Public Utility Commission respecting the hazards posed by a particular grade crossing and the Board’s decision directing installation of protective lights and bells was hearsay and not admissible. The Phillips’ court noted that it is “clearly the intent of the drafters not to allow in evidence conclusionary material resulting from official investigations embodied in statements or reports of the official or agency involved.” The court also noted that under various Federal Districts and Circuits, the consensus is to favor the view that legal conclusions are not admissible as findings of fact under the Rule.

The Appellate Court also noted that the cornerstone of the public records exception is trustworthiness. In this case, a court must be cautious about the use of an administrative determination that may be predicated upon a different, more lenient standard. Thus the court found that NJRE 803(c)(8) does not authorize the admission of an SSA Determination of Disability as a hearsay exception.

Lastly, the court highlighted that the SSA Disability Determination is of dubious probative value in a personal injury action. The lack of a meaningful adversarial process with respect to the cause, existence and extent of the plaintiff’s alleged disability renders the SSA conclusions on that issue unreliable. Conversely, the court noted that the defendant may suffer real and significant prejudice from the admission of the SSA Disability Determination. The jury may inappropriately give weight, based on the fact that SSA is a government agency, to its conclusions that the plaintiff suffered a disability.

Governor Chris Christie and Senate President Stephen Sweeney have resolved their year-long dispute regarding filling vacancies on the State Supreme Court. As previously discussed here and here and here, the Governor and the Democratically controlled Senate have been at an impasse to fill the vacancy created by the Governor’s refusal to reappoint Justice Wallace to the Court. In May 2010, Governor Christie refused to reappoint Wallace to a full term to the Court. He in turn nominated Anne Patterson to fill Wallace’s seat. The Senate refused to conduct hearings on the Patterson nomination until the full Wallace term would have expired in 2012. This position was taken by the Senate, as no other governor had refused to reappoint a sitting justice.

During this impasse, the Chief Justice elevated the senior most Appellate Judge to temporarily fill the Wallace vacancy. This resulted in Justice Rivera-Soto proclaiming that he felt the Chief Justice acted unconstitutionally in elevating the Appellate Judge to the Supreme Court and refused to participate in any case in which that judge also participated. Justice Rivera-Soto subsequently tempered his position and said that he would not participate in cases in which the Appellate Judge cast a deciding vote. Due to this position, lawmakers called for Rivera-Soto to immediately resign or be impeached. In January, Rivera-Soto informed the Governor that he would not seek reappointment to the high court. His term will end on August 31st.

In the compromise reached by the Governor and Sweeney, Christie will withdraw the Patterson nomination for Wallace’s seat and resubmit that nomination for Rivera-Soto’s seat. The Wallace seat will remain “open”, with an Appellate Judge assigned, until March. At that time, the Governor will make his nomination for that seat. At that time, Justice Virginia Long’s seat will also become “open” due to the justice reaching the mandatory retirement age of 70.

Erik Anderson

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.

The Appellate Division has ruled that an employer is not responsible for the actions of its alcoholic employee when he is not engaged in work related activities and there is no knowledge that the employee has a drinking problem.

In this matter, Eugene Baum was an employee of Future Electronics, which sells semiconductors and their components. Initially, Baum was an “in house” salesperson. Eventually, he was transferred to an outside sales job.

On April 20, 2006, Baum struck two teenage girls walking on the side of a road in Kinnelon, New Jersey at 7:45pm. Earlier in the day, Baum had driven from his home in Dover, New Jersey to a business meeting in Monmouth County. During discovery, Baum admitted to having been drinking vodka from a water bottle when he drove to and from the business meeting. After returning home from the business meeting, Baum believes he continued to drink in his house. Baum then decided to drive to his mother’s house in Kinnelon to get spare tire. During his drive to his mother’s house, Baum used his cell phone at 7:19pm to check his voice mailbox at work. The accident happened twenty-five minutes later.

During discovery it was learned that Baum was driving a rental car. Baum admitted that he was driving the rental car due to the fact that his personal automobile was inoperable. Baum paid for the rental out of his own funds. Additionally, Baum noted that he had a drinking problem and had been hospitalized on three occasions for that condition from 2005 to 2006. However, Baum’s boss testified that he had no knowledge that Baum had a drinking problem and never saw Baum in an intoxicated state.

Plaintiffs filed suit against Baum, Future and the car rental company. The rental company was dismissed from the action via summary judgment. At the close of discovery, Future filed a motion for summary judgment, which was also granted. The plaintiffs appealed that ruling.

In their appeal, plaintiffs argued that the granting of summary judgment was improper as Future could have been found responsible for the happening of the accident under the theories of (1) vicarious liability, based on respondeat superior; and/or (2) negligent retention and/or supervision.

With regard to the plaintiff’s theory of respondeat superior, the Court found that there was no evidence that Baum was acting within his scope of employment when the accident. The Court noted that Baum admitted that he was driving to his mother’s house for personal reasons. Additionally, the Court found that Baum checking his work voicemail twenty-five minutes before the happening of the accident was insufficient to establish that he was within the scope of his employment when the accident occurred.

The Court also rejected plaintiff’s argument that Future could be found responsible for the happening of the accident due to the fact that they knew Baum had a drinking problem, but allowed him to become an outside sales person. In rendering its decision, the Court found that there was no evidence to establish that Future knew of Baum’s drinking problem, or the state he was in at the time of the accident. The Court wrote, “Future did not supply the vodka to Baum, Baum was not visibly intoxicated from drinking with a client for business purposes earlier in the day, and Baum was nether driving to, nor returning from work when the accident occurred.”

This decision maintains well settled case law that in examining the potential liability of an employer, the notion of fairness and public policy must be considered. In a case where the employer has not supplied the alcohol (or venue for the consumption of alcohol) and the employee is not in the scope of his employment, an employer will generally not be held responsible for the actions of its employee.

Erik Anderson

Reardon Anderson is a Tinton Falls, New Jersey based law firm which represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.

On December 10, 2010, New Jersey Supreme Court Justice Roberto Rivera-Soto (Republican) issued two opinions in which he advised that he will not participate in the Court’s proceedings while a temporarily assigned Appellate Division Judge sits on the Court. The controversy stems from Governor Chris Christie’s (Republican) refusal to renominate Justice John Wallace (Democrat) to the Court. Under the New Jersey Constitution, Supreme Court Justices initially serve a seven-year term. After that term expires, the Governor may then renominate the Justice for tenure, allowing the Justice to serve until the mandatory retirement age of 70.

Justice Wallace’s seven-year term was to end on May 20, 2010. However, May 3, 2010, Governor Christie announced that he would not renominate Justice Wallace. This position was consistent with Governor Christie’s campaign pledge to “reshape” the Supreme Court. In not renominating Justice Wallace, it was the first time in the history of New Jersey’s modern constitution (63 years) that a governor refused to renominate a sitting Justice. Normally, as a matter of course, governors would renominate a sitting Justice even if that Justice was from an opposing political party.

After announcing that Justice Wallace would not be renominated, Governor Christie nominated Anne Patterson (democrat) fill the seat being vacated by Wallace. The democratically controlled Senate in turn blocked the nomination of Ms. Patterson. This in turn created a vacancy on the court. Accordingly, Chief Justice Stuart Rabner temporarily appointed Judge Edwin Stern (the senior most Appellate Division Judge) to fill the vacancy.

Despite previously participating in cases with Judge Stern, Justice Rivera-Soto announced on December 10th that he was abstaining from future participation in cases before the Court while Judge Stern sat on the bench. In his abstaining opinion, Justice Rivera-Soto maintained that it is a violation of the State Constitution to temporarily appoint a judge to the Court simply to fill a vacant seat instead of doing so to maintain a quorum (which is 5 Justices). Chief Justice Rabner responded to Justice Rivera-Soto’s opinion by asserting that it is constitutionally permissible to temporarily appoint Judge Stern to the Court. He further added that Justice Rivera-Soto has no basis for refusing to participate in voting and writing decisions and is failing to fulfill his obligation as a Justice of the Supreme Court.

In the coming weeks, it will be interesting to see how the Executive and Legislative Branch respond to Justice Rivera-Soto’s decision to abstain from future court proceedings. Within the Legislative Branch, there has been discussions concerning whether Justice Rivera-Soto should be impeached for refusing to participate.

— Erik Anderson, Esq.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.